In an August 12, 2021 filing, the Minneapolis office of the National Labor Relations Board (NLRB) issued a Complaint against non-union employer Home Depot USA, Inc., accusing the retailer of unlawfully selectively enforcing its dress code policy prohibiting clothing with messages pertaining to “causes or political messages unrelated to workplace matters.” Specifically, the NLRB alleges Home Depot targeted employees who wore “Black Lives Matter” slogans in violation of the policy, while failing to address other dress code violations.
The Complaint claims the company applied its dress code “selectively and disparately” to punish workers who had the slogan “BLM” on their Home Depot aprons and engaged in other related protected concerted activities, such as writing emails and engaging in conversations with coworkers and managers about discrimination and harassment at work.
Under the National Labor Relations Act (NLRA), non-supervisory workers have a right to join together to try to improve their working conditions. The NLRB regional director made clear in a statement that the NLRA protects the activities of workers raising racial “issues with the goal of improving their working conditions. It is this important right we seek to protect in this case.”
This Complaint comes less than a month after the new General Counsel of the NLRB, Jennifer Abruzzo, was sworn in. In an August 12, 2021 Memorandum, Abruzzo defined a bold new direction for the NLRB’s enforcement priorities, departing sharply from the priorities outlined by her NLRB predecessor appointed by Donald Trump. Among the topics the NLRB will revisit: Handbook policies, such as overbroad Social Media policies (prohibiting gripes about the company) and Email policies requiring that company email be used for “business purposes only.”
So to answer the question in the title: No. You do not have to allow workers to wear masks or clothing with social, political, or non-work-related messages such as “BLM.” However, you do have to enforce your dress code policy consistently or the selective enforcement may be deemed a veiled attempt to quash employees’ protected concerted activity.
Have questions regarding your Handbook policies or the new direction of the NLRB? Don’t worry, we’re here to help!
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